united states court of appeals for the fifth circuit · l’inyonei chinuch, inc. v. otsar sifrei...

No. 19-60293

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILL MCRANEY,

Plaintiff-Appellant, v.

THE NORTH AMERICAN MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION, INCORPORATED,

Defendant-Appellee.

On Appeal from the United States District Court for the Northern District of Mississippi in Case No. 1:17-cv-00080 (Davidson, J.)

DEFENDANT-APPELLEE’S PETITION FOR REHEARING EN BANC

KELLY J. SHACKELFORD HIRAM S. SASSER, III JUSTIN E. BUTTERFIELD FIRST LIBERTY INSTITUTE 2001 W. Plano Parkway, Ste. 1600 Plano, TX 75075 (972) 941-4444 KATHLEEN I. CARRINGTON DONNA BROWN JACOBS JOSHUA J. WIENER BUTLER SNOW LLP 1020 Highland Colony Parkway Ridgeland, MS 39157 (601) 948-5711

August 13, 2020

MATTHEW T. MARTENS KEVIN GALLAGHER MATTHEW E. VIGEANT PAUL VANDERSLICE WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue N.W. Washington, D.C. 20006 (202) 663-6000

KEVIN PALMER WILMER CUTLER PICKERING HALE AND DORR LLP 60 State Street Boston, MA 02109 (617) 526-6000

Case: 19-60293 Document: 00515526896 Page: 1 Date Filed: 08/13/2020

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No. 19-60293

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILL MCRANEY,

Plaintiff-Appellant, v.

THE NORTH AMERICAN MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION, INCORPORATED,

Defendant-Appellee.

On Appeal from the United States District Court for the Northern District of Mississippi in Case No. 1:17-cv-00080 (Davidson, J.)

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges

of this court may evaluate possible disqualification or recusal.

1. Will McRaney, Plaintiff-Appellant

2. William Harvey Barton, II, Counsel for Plaintiff-Appellant

3. Barton Law Firm, PLLC, Counsel for Plaintiff-Appellant

4. The North American Mission Board of the Southern Baptist Convention,

Inc., Defendant-Appellee


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5. Kathleen Ingram Carrington, Counsel for Defendant-Appellee

6. Donna Brown Jacobs, Counsel for Defendant-Appellee

7. Joshua J. Wiener, Counsel for Defendant-Appellee

8. Butler Snow LLP, Counsel for Defendant-Appellee

9. Matthew T. Martens, Counsel for Defendant-Appellee

10. Kevin Gallagher, Counsel for Defendant-Appellee

11. Matthew E. Vigeant, Counsel for Defendant-Appellee

12. Kevin Palmer, Counsel for Defendant-Appellee

13. Paul Vanderslice, Counsel for Defendant-Appellee

14. Wilmer Cutler Pickering Hale and Dorr LLP, Counsel for Defendant-

Appellee

15. Kelly J. Shackelford, Counsel for Defendant-Appellee

16. Hiram S. Sasser, III, Counsel for Defendant-Appellee

17. Justin E. Butterfield, Counsel for Defendant-Appellee

18. First Liberty Institute, Counsel for Defendant-Appellee

19. Baptist Convention of Maryland/Delaware, Inc., Third-Party Respondent

20. Adam Stone, Counsel for Third-Party Respondent

21. Jackie R. Bost, II, Counsel for Third-Party Respondent

22. Jones Walker, LLP, Counsel for Third-Party Respondent


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/s/ Matthew T. Martens ATTORNEY OF RECORD FOR DEFENDANT-APPELLEE THE NORTH AMERICAN MISSION

BOARD OF THE SOUTHERN BAPTIST

CONVENTION, INC.


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RULE 35(B)(1) STATEMENT

We express a belief, based on a reasoned and studied professional judgment,

that the panel decision is contrary to Our Lady of Guadalupe School v. Morrissey-

Berru, 140 S. Ct. 2049 (2020); Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, 565 U.S. 171 (2012); Combs v. Central Texas Annual Conference

of United Methodist Church, 173 F.3d 343 (5th Cir. 1999); and Simpson v. Wells

Lamont Corp., 494 F.2d 490 (5th Cir. 1974), and that reconsideration by the full

court is necessary to secure and maintain uniformity of decisions in this court.

It is also our reasoned and studied professional judgment that

reconsideration by the full court is necessary because this appeal involves

questions of exceptional importance on which the panel’s decision conflicts with

the authoritative decisions of other United States Courts of Appeals. First, the

panel’s application of “neutral principles of law” outside the church property

dispute context conflicts with Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986).

Second, the panel’s decision to not address the ministerial exception conflicts with

Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, 903 F.3d 113 (3d Cir.

2018); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 (6th Cir. 2015);

and Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006).

/s/ Matthew T. Martens MATTHEW T. MARTENS


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TABLE OF CONTENTS

Page CERTIFICATE OF INTERESTED PERSONS ......................................................... i

RULE 35(B)(1) STATEMENT ................................................................................ iv

TABLE OF AUTHORITIES .................................................................................... vi

ISSUE WARRANTING REVIEW............................................................................ 1

STATEMENT OF THE COURSE OF PROCEEDINGS ......................................... 1

A. Factual Background ............................................................................... 1

B. Dr. McRaney’s Complaint .................................................................... 3

C. Procedural Background ......................................................................... 4

ARGUMENT AND AUTHORITIES ........................................................................ 6

I. LEGAL CLAIMS CONCERNING CHURCH GOVERNANCE MATTERS

ARE NOT JUSTICIABLE IN SECULAR COURTS .................................................... 7

II. DR. MCRANEY’S LEGAL CLAIMS REQUIRE ADJUDICATION OF

MATTERS OF CHURCH GOVERNANCE ............................................................. 12

III. THE PANEL ERRED IN REQUIRING “CERTAIN[TY]” THAT

ECCLESIASTICAL QUESTIONS WILL BE IMPLICATED BY THE

LITIGATION ..................................................................................................... 16

CONCLUSION ........................................................................................................ 17

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

APPENDIX


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TABLE OF AUTHORITIES

CASES Page(s)

Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002) ............................................................................ 13

Combs v. Central Texas Annual Conference of United Methodist Church, 173 F.3d 343 (5th Cir. 1999) .................................................................. 9

Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 (6th Cir. 2015) .............................................................................. 15

Hernandez v. Commissioner, 490 U.S. 680 (1989) ................................................. 16

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012) .................................................................................. 8, 10, 11

Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986) ................................................................................ 9

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) .............................................................................................. 13

Larson v. Valente, 456 U.S. 228 (1982) ............................................................................................ 14

Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, 903 F.3d 113 (3d Cir. 2018) ............................................................................... 15

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) ............................................................................................ 16

Ogle v. Hocker, 279 F. App’x 391 (6th Cir. 2008) ......................................................................... 8

Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020) .................................................................................passim

Paul v. Watchtower Bible & Tract Society of New York, Inc., 819 F.2d 875 (9th Cir. 1987) .............................................................................. 13


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Sanders v. Casa View Baptist Church, 134 F.3d 331 (5th Cir. 1998) .............................................................................. 11

Simpson v. Wells Lamont Corp., 494 F.2d 490 (5th Cir. 1974) ................................................................................ 9

Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010) ............................................................................ 7

Tilton v. Richardson, 403 U.S. 672 (1971) ............................................................................................ 11

Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) ........................................................................ 8, 15

Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007) ........................................................................ 10, 13


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ISSUE WARRANTING REVIEW

This case concerns a religious dispute between a minister and a ministry

over matters of internal religious governance and leadership. Secular courts cannot

adjudicate such matters. Yet the panel held that they can.

The issue warranting review is: Whether the panel erred in holding that,

under the church autonomy doctrine, secular courts are constitutionally permitted

to apply “neutral principles of law” to this legal dispute concerning church

governance and leadership.

STATEMENT OF THE COURSE OF PROCEEDINGS

A. Factual Background

Defendant-Appellee North American Mission Board of the Southern Baptist

Convention, Inc. (“Mission Board”) is one of twelve boards and agencies of the

Southern Baptist Convention. Its mission is to “work with churches, associations

and state conventions in mobilizing Southern Baptists as a missional force to

impact North America with the gospel of Jesus Christ through evangelism and

church planting.” ROA.14, 41. The Mission Board partners with state Baptist

conventions that work in cooperation with the Southern Baptist Convention,

including the Baptist Convention of Maryland/Delaware (“Baptist Convention”),

that is comprised of 560 separate churches. ROA.14, 41, 53. The Baptist

Convention and the Mission Board were partnered under a religious ministry


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agreement known as a “Strategic Partnership Agreement” (“SPA”) in which they

jointly agreed to create and execute “a strategic plan for penetrating lostness

through church planting and evangelism.” ROA.15, 42. The agreement

established the internal ministry relationship between the two ministries, setting

their “respective oversight, management, and obligation of each to the other.”

ROA.15.

Plaintiff-Appellant Will McRaney is the former Executive Director of the

Baptist Convention. In that position, Dr. McRaney was responsible for the Baptist

Convention’s “ministry direction” and for—under the terms of the SPA—carrying

out the joint religious goals of the Mission Board and the Baptist Convention.

ROA.14, 41-43. In 2014, the Mission Board proposed assuming greater control

“in the specific area of starting new churches” and in “the selection, assessing, and

training and supporting of church planters.” ROA.16. Dr. McRaney rejected the

Mission Board’s proposed change. ROA.15-16.

This led the Mission Board to alter its religious relationship with the Baptist

Convention, announcing that it would end their ministry partnership in one year.

ROA.195. Mission Board and Baptist Convention leadership then met, and the

Mission Board allegedly threatened to withhold funding from the Baptist

Convention unless Dr. McRaney was terminated. ROA.17. On June 8, 2015, the

Baptist Convention voted to terminate Dr. McRaney, causing him to resign the


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next day. ROA.195. The Baptist Convention voted to terminate Dr. McRaney

because, among other things, he “openly made known his disdain and hostility

toward [the Mission Board’s] ministry strategy and its officers.” ROA.31.

B. Dr. McRaney’s Complaint

Dr. McRaney filed suit against the Mission Board for intentional

interference with business relationships, defamation, and intentional infliction of

emotional distress. ROA.13-19. All of these claims arise out of and turn on the

circumstances of Dr. McRaney’s termination from his ministry position.

Specifically, Dr. McRaney alleges that the Mission Board “intentionally made

false statements about him to [the Baptist Convention] that resulted in his

termination.” Op. 4 (emphasis added). The supposed false statement concerned

Dr. McRaney’s refusal to meet with the Mission Board’s president to discuss a

new SPA. Id. Dr. McRaney also alleges that the Mission Board “got him

uninvited to speak at the mission symposium” and “posted his picture at [Mission

Board] headquarters” to communicate that he was untrustworthy. Id. Thus,

resolution of Dr. McRaney’s claims requires a determination as to the reason he

was terminated from his ministry position, the reason he was uninvited from

speaking at a religious symposium, and the reason he was excluded from ministry

headquarters.


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C. Procedural Background

On June 29, 2017, the Mission Board moved for dismissal based on the First

Amendment’s ministerial exception. ROA.72-99. The district court agreed that

Dr. McRaney was a minister within the meaning of the exception, and did not

dispute that the Mission Board was a ministry generally protected by the exception,

but nonetheless denied the motion on the legal ground that the exception applied

only to disputes between employees and their direct employers and thus did not

apply here because the entity that Dr. McRaney sued (the Mission Board) was not

his employer (the Baptist Convention). ROA.123-137. The Mission Board moved

to certify the district court’s order for interlocutory appeal. ROA.138-151. The

district court denied the certification motion, ROA.152-156, requiring the parties to

proceed with discovery.

On September 11, 2018, the Mission Board served a subpoena on the Baptist

Convention for employment records related to Dr. McRaney’s job performance

and termination, ROA.169-174, which the Baptist Convention moved to quash

under the ministerial exception, ROA.189. The Mission Board then asked the

court to dismiss certain of Dr. McRaney’s claims because it would be impossible

for the Mission Board to defend itself without the employment records. ROA.235-

244. The Magistrate Judge granted the Baptist Convention’s motion to quash

under the ministerial exception and ecclesiastical abstention doctrine, ROA.270-


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271, and the Mission Board then re-raised its arguments for dismissal, ROA.311-

317.

On April 24, 2019, the district court dismissed Dr. McRaney’s claims,

finding that they were tied either to his termination as Executive Director of the

Baptist Convention, a religious organization partnered with the Mission Board in

their missional goals of evangelism and church planting, or his troubles with the

Mission Board and the Baptist Convention arising from their collective religious

work. ROA.321-327.

Dr. McRaney appealed the dismissal to this Court, and a panel reversed and

remanded the case, holding that, at this stage, it was not “certain” that resolution of

his claims would “require” addressing “purely ecclesiastical questions.” Op. 4, 7.

The panel concluded that, because Dr. McRaney’s claims did not directly

“challeng[e] the termination of his employment,” a secular court could apply

“neutral principles of tort law” to his legal claims, Op. 4-5, notwithstanding that

those claims turned on the reasons for his discharge from ministry employment and

disinvitation from a religious symposium, Op. 4. In the panel’s view, a secular

court can adjudicate the reasons for the termination of a minister’s employment so

long as those reasons are not religious ones. Op. 6. The panel placed the burden

on the Mission Board to offer “evidence” that those reasons were religious in

nature. Op. 6. The panel warned that ruling otherwise would place religious


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employment disputes in a “preferred position” that would violate the Establishment

Clause. Op. 3.

On July 8, 2020, the Supreme Court issued its opinion in Our Lady of

Guadalupe School v. Morrissey-Berru (“OLG”), 140 S. Ct. 2049 (2020). The

panel did not call for supplemental briefing on the effect of OLG on this case,

issuing its opinion in this case eight days later.

ARGUMENT AND AUTHORITIES

The panel’s holding is enormously consequential, injecting courts into

disputes between ministers and religious organizations concerning internal

religious governance and leadership and denying religious groups the special

solicitude afforded to them by the First Amendment. Indeed, the panel’s opinion

goes so far as to permit the district court to adjudicate not only the reasons for a

religious minister’s termination, but also the reasons for speaker selection at a

mission symposium.

The panel permitted this judicial intrusion on the ground that the district

court might be able to apply “neutral principles of tort law” to this church

governance dispute in the event the Mission Board did not advance “valid religious

reasons” for its actions. The panel’s reasoning misapprehends the church

autonomy doctrine, failing to recognize that the subject matter of church

governance is beyond the reach of secular courts regardless of the reasons


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advanced by a religious organization for a particular governance decision.

Because the panel’s opinion is deeply flawed, conflicts with precedent both of this

Court and the Supreme Court, and has grave implications for religious

organizations in this circuit, the Mission Board seeks rehearing en banc.

I. LEGAL CLAIMS CONCERNING CHURCH GOVERNANCE MATTERS ARE NOT

JUSTICIABLE IN SECULAR COURTS

En banc review is warranted because the panel’s decision improperly inserts

courts into disputes they are constitutionally barred from adjudicating. Under the

First Amendment’s church autonomy doctrine, legal claims concerning matters of

church governance and leadership are not justiciable, whether under “neutral

principles of law” or otherwise. Church governance and leadership decisions are,

as a category, wholly excluded from judicial review by secular courts.

In OLG, the Court reiterated that the Religion Clauses of the First

Amendment secure “the general principle of church autonomy,” which respects

religious institutions’ “independence in … matters of church government.” 140 S.

Ct. at 2060 (quotation marks omitted). Church autonomy means, the Court

explained, that religious institutions have “autonomy with respect to internal

management decisions that are essential to the institution’s central mission,”

including “the selection of individuals who play key roles.” Id. The ministerial

exception is a specific application “carved” from the “broad” church autonomy

doctrine. Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1242


8

n.4 (10th Cir. 2010). Under the ministerial exception, “courts are bound to stay

out of employment disputes involving those holding certain important positions

with churches and other religious institutions.” OLG, 140 S. Ct. at 2060.

The panel held that the church autonomy doctrine1 “precludes judicial

review of claims that require resolution of ‘strictly and purely ecclesiastical’

questions,” Op. 2, and then narrowly construed what constitutes a “purely

ecclesiastical question.” As relevant here, matters of church government—

including “internal management decisions that are essential to the institution’s

central mission”—are ecclesiastical questions categorically beyond the reach of

secular courts. OLG, 140 S. Ct. at 2060. And this is true regardless of the reasons

raised by the religious organization in support of its governance decisions. See,

e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S.

171, 194 (2012) (holding that the constitutional protection of a religious

organization’s decision does not apply “only when it is made for a religious

reason”); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1037 (7th Cir.

2006) (holding that dismissal is appropriate even when “the complaint is not based

on and does not refer to religious doctrine or church management” if it is

1 Courts have used the terms “church autonomy doctrine” and “ecclesiastical abstention” interchangeably. See, e.g., Ogle v. Hocker, 279 F. App’x 391, 395 (6th Cir. 2008).


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“apparent that a controversy over either may erupt in the course of adjudication”

(emphases added)). Among the church governance issues that secular courts may

not adjudicate “is the selection of the individuals who play key roles” in a

religious organization. OLG, 140 S. Ct. at 2060. In other words, courts must, as a

category of cases, “stay out of employment disputes involving those holding

certain important positions within churches and other religious institutions.” Id.

The panel believed that a legal dispute did not turn on purely ecclesiastical

questions if it could be resolved by application of “neutral principles of tort law.”

Op. 4-5. But courts have largely cabined those “neutral principles of law” to

church property disputes. See, e.g., Hutchison v. Thomas, 789 F.2d 392, 393-396

(6th Cir. 1986). And this Court has heretofore never applied that doctrine to

matters of church governance and leadership. In fact, this Court has rejected the

idea that church autonomy protections do not apply in “purely nondoctrinal”

disputes, Combs v. Central Texas Annual Conference of United Methodist Church,

173 F.3d 343, 350 (5th Cir. 1999), or that they are “narrowly limit[ed] … to

differences in church doctrine,” but instead cover “matters of church government

as well as those of faith and doctrine,” Simpson v. Wells Lamont Corp., 494 F.2d

490, 493 (5th Cir. 1974). This is important because, while the elements of tort

claims can sometimes be defined by neutral principles without regard to religion,

“the application of those principles to impose civil tort liability” in the context of a


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church governance case invariably impinges on a religious organization’s “ability

to manage its internal affairs.” Westbrook v. Penley, 231 S.W.3d 389, 400 (Tex.

2007).

Repeating its error, the panel construed the church autonomy doctrine’s

requirement that a case present “purely ecclesiastical questions” to cover only

those cases where the parties raise explicitly religious arguments requiring the

adjudication of doctrinal questions. Op. 4-5. In the panel’s view, whether Dr.

McRaney’s claims are purely ecclesiastical in nature depends on whether the

Mission Board raises “valid religious reasons” for its conduct. See Op. 6. The

panel believed that secular courts are permitted to adjudicate matters of church

governance—including speaker selection at a mission symposium—so long as the

reasons for the governance decision at issue are not “religious.” See Op. 6. This

is not the law and “misses the point” of the church autonomy doctrine, “[t]he

purpose of [which] is not to safeguard a church’s decision … only when it is made

for a religious reason.” Hosanna-Tabor, 565 U.S. at 194.2 Rather, secular courts

are categorically precluded from delving into religious institutions’ critical

2 Rather than apply the Supreme Court’s clear directives in Hosanna-Tabor, the panel relied on pre-Hosanna-Tabor opinions suggesting that a religious organization’s governance decisions could be reviewed based on “neutral principles of law” rather than religious ones. Op. 3-5. Those decisions conflict with intervening Supreme Court precedent and should be rejected.


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internal management decisions such as the “selection of individuals who play key

roles” regardless of the reasons underlying those governance decisions. See id. at

195; OLG, 140 S. Ct. at 2060.

The panel’s unduly narrow application of the church autonomy doctrine was

apparently influenced by its view that the First Amendment “‘does not

categorically insulate religious relationships from judicial scrutiny’” because doing

so “would impermissibly place a religious leader in a preferred position in our

society.” Op. 3 (quoting Sanders v. Casa View Baptist Church, 134 F.3d 331, 335-

336 (5th Cir. 1998)). Contrary to the panel’s assertion, religious organizations do

enjoy a “preferred position in our society” given the importance of keeping church

and state independent from one another. As the Supreme Court unanimously

recognized in Hosanna-Tabor, “the text of the First Amendment itself … gives

special solicitude to the rights of religious organizations” over and above other

rights, such as the freedom of association, that are “enjoyed by religious and

secular groups alike.” 565 U.S. at 189.

The panel was also incorrect to suggest (Op. 3) that giving full expression to

the church autonomy doctrine is in tension with the Establishment Clause. The

Supreme Court expressly rejected this proposition in Hosanna-Tabor. While at

times “there can be ‘internal tension … between the Establishment Clause and the

Free Exercise Clause,’” that is “[n]ot so here.” Hosanna-Tabor, 565 U.S. at 181


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(quoting Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality opinion)).

Instead, “[b]oth Religion Clauses bar the government from interfering with”

ministerial personnel decisions. Id. (emphasis added); see also id. at 189 (“the

Establishment Clause … prohibits government [from] involvement in []

ecclesiastical decisions”). The Court reaffirmed this principle in OLG, holding that

state interference in matters of faith and doctrine “would obviously violate the free

exercise of religion, and any attempt by government to dictate or even to influence

such matters would constitute one of the central attributes of an establishment of

religion.” 140 S. Ct. at 2060. In short, both Religion Clauses require courts to

protect the autonomy of religious organizations by abstaining from adjudicating

internal governance disputes.

II. DR. MCRANEY’S LEGAL CLAIMS REQUIRE ADJUDICATION OF MATTERS

OF CHURCH GOVERNANCE.

The panel’s decision inserts the district court into a matter of church

government, requiring an adjudication of the reasons underlying the termination of

Dr. McRaney’s ministry employment and his disinvitation from a mission

symposium. These are precisely the types of inquiries that the Supreme Court in

OLG forbade secular courts to undertake.

In allowing this litigation to proceed, the panel noted that Dr. “McRaney is

not challenging the termination of his employment.” Op. 4. The Supreme Court’s

holding in OLG does not turn on the particular claim brought, but rather on


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whether the lawsuit requires adjudication of “internal management decisions that

are essential to the institution’s central mission.” 140 S. Ct. at 2060. The dispute

here easily satisfies this standard, as the panel itself recognized that Dr. McRaney’s

claims, regardless of whether they directly challenge his termination, turn on the

cause of his termination as a minister and his disinvitation as a mission speaker.

See, e.g., Op. 4 (Dr. McRaney alleges that the Mission Board “intentionally made

false statements about him to [the Baptist Convention] that resulted in his

termination.” (emphasis added)).

Indeed, the Supreme Court has been clear that the type of claim is irrelevant;

what matters is whether the dispute centers around “matters of church government”

or “faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116-117

(1952); see also Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648,

655 (10th Cir. 2002) (“This church autonomy doctrine prohibits civil court review

of internal church disputes involving matters of faith, doctrine, church governance,

and polity.”). This is true regardless of whether a plaintiff is a member or a non-

member of the religious organization. See Paul v. Watchtower Bible & Tract Soc’y

of N.Y., Inc., 819 F.2d 875, 883 (9th Cir. 1987). Courts will not “pars[e]” between

the secular and religious elements of a case, as doing so “would unconstitutionally

entangle the court in matters of church governance.” Westbrook, 231 S.W.3d at

392.


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Also irrelevant is the fact that the Southern Baptist Convention is not

organized like a hierarchical church. The panel disregarded that the Baptist

Convention works “in cooperation with the Southern Baptist Convention” and the

Mission Board “is one of the twelve boards and agencies of the Southern Baptist

Convention,” highlighting instead that the Mission Board has “never been

McRaney’s employer.” Op. 3. Not all churches organize their authority structure

into employer-employee relationships. The panel’s holding thus discriminates

against churches based on their organizational structure in contravention of

Supreme Court precedent.3 See, e.g., OLG, 140 S. Ct. at 2064 (criticizing a lower

court for “privileging religious traditions with formal organizational structures over

those that are less formal”).

The district court’s unchallenged ruling that Dr. McRaney’s employment

records are covered by the ministerial exception and the ecclesiastical abstention

doctrine further demonstrates the error here. ROA.270-271. The district court

granted the Baptist Convention’s motion to quash and entered its show cause order

because the underlying dispute is a religious employment decision subject to the

ministerial exception and the church autonomy doctrine. ROA.308-310. As it

3 The panel’s approach in advantaging hierarchical churches over congregational denominations also favors one religious expression over another. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).


15

stands, the Mission Board is in the impossible position of being required by the

panel opinion to offer “evidence” of valid religious reasons for its actions while

being denied access to the employment records based on the church autonomy

doctrine and ministerial exception.4

En banc review is warranted here because the panel failed to consider

whether the decisions of a religious organization (whether the Mission Board or

the Baptist Convention) are church governance decisions categorically barred from

adjudication in secular courts regardless of whether the religious organization

advances valid religious reasons for those decisions.

4 The panel had an independent duty to avoid entangling itself in a religious dispute under the ministerial exception, which OLG identified as residing within the church autonomy doctrine. The ministerial exception cannot be waived, lest the court be drawn into a religious dispute that the First Amendment forbids it from adjudicating; the panel’s decision to not address the ministerial exception in fact creates a circuit split. See Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, 903 F.3d 113, 118 n.4 (3d Cir. 2018); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 836 (6th Cir. 2015); Tomic, 442 F.3d at 1042. Because the ministerial exception is a structural limitation on the judicial power that cannot be waived, courts can and do raise it sua sponte. See, e.g., Lee, 903 F.3d at 118 & n.4 (affirming district court’s sua sponte raising of ministerial exception). Dr. McRaney is clearly a minister who identified his duties as “ministry direction and priorities of the organization and the screening and managing of all staff members” in his Complaint. ROA.14. Thus, this court is “bound to stay out of [the] employment dispute[]” between Dr. McRaney and the Mission Board, because judicial intervention in the dispute “threaten[s] the [Mission Board’s] independence in a way the First Amendment does not allow.” OLG, 140 S. Ct. at 2060, 2069.


16

III. THE PANEL ERRED IN REQUIRING “CERTAIN[TY]” THAT ECCLESIASTICAL

QUESTIONS WILL BE IMPLICATED BY THE LITIGATION.

Even were the panel correct—which it was not—that the justiciability of this

controversy turned on whether the Mission Board raised “valid religious reasons”

for the decisions Dr. McRaney challenges, the panel erred in holding that

dismissal would be proper only if it is “certain” that resolution of Dr. McRaney’s

claims would “require” the court to delve into religious matters. Op. 3, 7. The

panel acknowledged that the Mission Board had asserted that it had “valid

religious reasons” for its actions. Op. 6; see also Brief of Appellee 15.

Nevertheless, the panel demanded “evidence” of such reasons before dismissal

would be appropriate. See Op. 6-7.

Subjecting a religious organization to the discovery process to substantiate

its religious reasons and their validity to the satisfaction of a secular court is itself

an impermissible intrusion into the organization’s affairs. See, e.g., NLRB v.

Catholic Bishop, 440 U.S. 490, 502 (1979) (the “very process of inquiry leading

to findings and conclusions” impinges on “rights guaranteed by the Religion

Clauses”). Even were the law such that the reason for the Mission Board’s

decisions is relevant to the dismissal question, an assertion by the Mission Board

that it had a religious reason should end the analysis and require dismissal. Cf.

Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (“It is not within the

judicial ken to question the centrality of particular beliefs or practices to a faith, or


17

the validity of particular litigants’ interpretations of those creeds.”). The panel

erred in requiring “evidence” of these religious reasons and, presumably, the

testing of such evidence in the discovery process.

CONCLUSION

The court should grant rehearing en banc.


18

August 13, 2020 Respectfully submitted, /s/ Matthew T. Martens MATTHEW T. MARTENS

KEVIN GALLAGHER MATTHEW E. VIGEANT PAUL VANDERSLICE WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Avenue N.W. Washington, D.C. 20006 (202) 663-6000

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KATHLEEN I. CARRINGTON DONNA BROWN JACOBS JOSHUA J. WIENER BUTLER SNOW LLP 1020 Highland Colony Parkway Ridgeland, MS 39157 (601) 948-5711


CERTIFICATE OF COMPLIANCE

This document complies with the word limit of Fed. R. App. P. 35(b)(2)(A)

because, excluding the parts of the document exempted by Fed. R. App. P. 32(f),

this document contains 3,899 words.

This document complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this

document has been prepared in a proportionally spaced typeface using Microsoft

Word 14-point Times New Roman font.

Executed this 13th day of August, 2020



CERTIFICATE OF SERVICE

On this 13th day of August, 2020, I electronically filed the foregoing using

the Court’s appellate CM/ECF system. Counsel for all parties to the case are

registered CM/ECF users and will be served by that system.



APPENDIX


IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19-60293

WILL MCRANEY, Plaintiff - Appellant v. THE NORTH AMERICAN MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION, INCORPORATED, Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Mississippi Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Plaintiff-Appellant Will McRaney brought suit against Defendant-

Appellee North American Mission Board of the Southern Baptist Convention

(“NAMB”) for intentional interference with business relationships, defamation,

and intentional infliction of emotional distress. The district court dismissed the

case for lack of jurisdiction, citing the ecclesiastical abstention doctrine, also

known as the religious autonomy doctrine. The district court found that it

would need to resolve ecclesiastical questions in order to resolve McRaney’s

claims. Because that conclusion was premature, we REVERSE and REMAND.

United States Court of AppealsFifth Circuit

FILEDJuly 16, 2020

Lyle W. CayceClerk



No. 19-60293

2

We review a dismissal for lack of subject matter jurisdiction de novo.

Williams v. Wynne, 533 F.3d 360, 364 (5th Cir. 2008). Dismissal is only proper

if “it appears certain that the plaintiff cannot prove any set of facts in support

of her claim which would entitle her to relief.” Wagstaff v. U.S. Dep’t of Educ.,

509 F.3d 661, 663 (5th Cir. 2007) (quoting Bombardier Aerospace Emp. Welfare

Benefits Plan v. Ferrer, Poirot & Wansbrough, 35 F.3d 348, 351 (5th Cir.

2003)).1

The ecclesiastical abstention doctrine recognizes that the Establishment

Clause of the First Amendment precludes judicial review of claims that require

resolution of “strictly and purely ecclesiastical” questions. Serbian E. Orthodox

Diocese for U.S. and Can. v. Milivojevich, 426 U.S. 696, 713 (1976) (quoting

Watson v. Jones, 13 Wall. 679, 733 (1871)); Kedroff v. St. Nicholas Cathedral

of Russian Orthodox Church in N. Am., 344 U.S. 94, 115–16 (1952); Kreshik v.

St. Nicholas Cathedral, 363 U.S. 190, 190–91 (1960). “[M]atters of church

1 We note that it is somewhat unclear whether the ecclesiastical abstention doctrine

serves as a jurisdictional bar requiring dismissal under Fed. R. Civ. P. 12(b)(1) or an affirmative defense requiring dismissal under Fed. R. Civ. P. 12(b)(6). See, e.g., Nayak v. MCA, Inc., 911 F.2d 1082, 1083 (5th Cir. 1990) (dismissing the case pursuant to Fed. R. Civ. P. 12(b)(6) without explicitly discussing the jurisdictional nature of the doctrine); Simpson v. Wells Lamont Corp., 494 F.2d 490, 492, 495 (5th Cir. 1974) (stating that “[t]he people of the United States conveyed no power to Congress to vest its courts with jurisdiction to settle purely ecclesiastical disputes” but affirming summary judgment rather than instructing the district court to dismiss for lack of jurisdiction); see also Watson v. Jones, 13 Wall. 679, 733 (1871) (describing a dispute that is “strictly and purely ecclesiastical in its character” as “a matter over which the civil courts exercise no jurisdiction”); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 195 n.4 (2012) (clarifying that the related “ministerial exception” is an affirmative defense rather than a jurisdictional bar); Hubbard v. J Message Grp. Corp., 325 F. Supp. 3d 1198, 1208–09 (D.N.M. 2018) (collecting cases) Kavanagh v. Zwilling, 997 F. Supp. 2d 241, 248 n.7 (S.D.N.Y. 2014) (discussing the uncertainty surrounding the jurisdictional nature of the ecclesiastical abstention doctrine post-Hosanna-Tabor). We need not resolve this uncertainty because dismissal was improper, regardless. See Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 171 (5th Cir. 2012) (finding that review under Fed. R. Civ. P. 12(b)(6) “requires us to scrutinize the same materials we would have considered were the case properly before us on a 12(b)(1) motion”); Ramming v. United States, 281 F.3d 158, 161–62 (5th Cir. 2001) (providing the standards of review for dismissals under Fed. R. Civ. P. 12(b)(1) and 12(b)(6)).



No. 19-60293

3

government, as well as those of faith and doctrine” constitute purely

ecclesiastical questions. Kedroff, 344 U.S. at 116; see also Simpson v. Wells

Lamont Corp., 494 F.2d 490, 493 (5th Cir. 1974) (emphasizing that the

ecclesiastical abstention doctrine covers matters of church government as well

as matters of religious doctrine). But “[t]he First Amendment does not

categorically insulate religious relationships from judicial scrutiny, for to do so

would necessarily extend constitutional protection to the secular components

of these relationships,” which “would impermissibly place a religious leader in

a preferred position in our society.” Sanders v. Casa View Baptist Church, 134

F.3d 331, 335–36 (5th Cir. 1998); see also Bd. of Educ. of Kiryas Joel Vill. Sch.

Dist. v. Grumet, 512 U.S. 687, 703 (1994) (describing the principle “that

government should not prefer one religion to another, or religion to irreligion”

as “at the heart of the Establishment Clause”); Jones v. Wolf, 443 U.S. 595, 602

(1979) (holding that courts may apply neutral principles of law to resolve

church property disputes). Therefore, the relevant question is whether it

appears certain that resolution of McRaney’s claims will require the court to

address purely ecclesiastical questions. At this stage, the answer is no.

Critically, many of the relevant facts have yet to be developed. Presently,

we know only the following: (1) McRaney formerly worked as the Executive

Director of the General Mission Board of the Baptist Convention for

Maryland/Delaware (“BCMD”), one of 42 separate state conventions that work

in cooperation with the Southern Baptist Convention; (2) NAMB, which has

never been McRaney’s employer, is one of twelve boards and agencies of the

Southern Baptist Convention; (3) NAMB and BCMD entered into a Strategic

Partnership Agreement (“SPA”) that addressed issues of personnel,

cooperation, and funding; (4) McRaney declined to adopt a new SPA on behalf

of BCMD, and NAMB notified BCMD that it intended to terminate the SPA in

one year; (5) McRaney’s employment was either terminated or he resigned; (6)



No. 19-60293

4

after his termination, McRaney was uninvited to speak at a large mission

symposium in Louisville, Mississippi; and (7) a photograph of McRaney was

posted at NAMB headquarters in Alpharetta, Georgia.

McRaney alleges that NAMB intentionally made false statements about

him to BCMD that resulted in his termination. Specifically, he alleges that

NAMB falsely told BCMD that he refused to meet with Dr. Kevin Ezell,

president of NAMB, to discuss a new SPA. He also alleges that NAMB

intentionally got him uninvited to speak at the mission symposium and posted

his picture at its headquarters to “communicate that [McRaney] was not to be

trusted and [was] public enemy #1 of NAMB.” In order to resolve McRaney’s claims, the court will need to determine

(1) whether NAMB intentionally and maliciously damaged McRaney’s

business relationships by falsely claiming that he refused to meet with Ezell,

see Scruggs, Millette, Bozeman & Dent, P.A. v. Merkel & Cocke, P.A., 910 So.

2d 1093, 1098 (Miss. 2005); (2) whether NAMB’s statements about McRaney

were false, defamatory, and at least negligently made, see Jernigan v.

Humphrey, 815 So. 2d 1149, 1153 (Miss. 2002); and (3) whether NAMB

intentionally caused McRaney to suffer foreseeable and severe emotional

distress by displaying his picture at its headquarters, see Jones v. City of

Hattiesburg, 228 So. 3d 816, 819 (Miss. 2017). At this early stage of the litigation, it is not clear that any of these

determinations will require the court to address purely ecclesiastical

questions. McRaney is not challenging the termination of his employment, see

Simpson, 494 F.2d at 492–93 (affirming dismissal of a lawsuit in which the

plaintiff challenged his removal as pastor), and he is not asking the court to

weigh in on issues of faith or doctrine, see Nayak v. MCA, Inc., 911 F.2d 1082,

1082–83 (5th Cir. 1990) (affirming dismissal of a defamation lawsuit seeking

to enjoin the distribution and presentation of the movie “The Last Temptation



No. 19-60293

5

of Christ”). His complaint asks the court to apply neutral principles of tort law

to a case that, on the face of the complaint, involves a civil rather than religious

dispute. See, e.g., Jones, 443 U.S. at 602 (holding that courts may apply neutral

principles of law to resolve church property disputes); Myhre v. Seventh-Day

Adventist Church Reform Movement Am. Union Int’l Missionary Soc’y, 719 F.

App’x 926, 928 (11th Cir. 2018) (“Civil courts may apply neutral principles of

law to decide church disputes that ‘involve[] no consideration of doctrinal

matters.’” (quoting Jones, 443 U.S. at 602)); Hutterville Hutterian Brethren,

Inc. v. Sveen, 776 F.3d 547, 553 (8th Cir. 2015) (“[A] court need not defer to an

ecclesiastical tribunal on secular questions and permissibly may resolve a

matter by applying neutral principles of the law.” (internal quotation marks

omitted)); Askew v. Trs. of Gen. Assembly of Church of the Lord Jesus Christ of

the Apostolic Faith, Inc., 684 F.3d 413, 419 (3d Cir. 2012) (“When a church

dispute turns on a question devoid of doctrinal implications, civil courts may

employ neutral principles of law to adjudicate the controversy.”); Merkos

L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99–100 (2d

Cir. 2002) (“Courts may decide disputes that implicate religious interests as

long as they can do so based on ‘neutral principles’ of secular law without

undue entanglement in issues of religious doctrine.”).

Other courts have held that similar claims did not require resolution of

purely ecclesiastical questions. In Marshall v. Munro, 845 P.2d 424 (Alaska

1993), the Alaska Supreme Court found that it had jurisdiction to consider

claims of intentional interference with a contract and defamation brought by a

minister against a church executive. Id. at 425, 429. There, as here, the alleged

interference consisted of false statements that were not religious in nature.2

2 NAMB argues that Marshall is distinguishable because this dispute “is rooted in and

intertwined with the primary ministry strategies of various religious organizations.” At least at this time, the record does not support NAMB’s view. The only derogatory information



No. 19-60293

6

Id. at 425. The court found that, under these circumstances, resolution of the

plaintiff’s claims would not require the court to determine whether the plaintiff

was qualified to serve as a pastor. Id. at 428.

Similarly, in Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468

(8th Cir. 1993), the Eighth Circuit found that it had jurisdiction over a claim

of intentional interference with a legitimate expectation of employment

brought by a minister against a religious organization. Id. at 469, 472. The

plaintiff alleged that the organization placed false information—that his

spouse had previously been married—in his personal file. Id. at 469. The court

reasoned that the plaintiff’s fitness as a minister was not in dispute and the

defendant had not yet “offered any religious explanation for its actions which

might entangle the court in a religious controversy.” Id. at 471–72. The Eighth

Circuit recognized, however, that its decision was preliminary. Id. at 472 (“If

further proceedings reveal that this matter cannot be resolved without

interpreting religious procedures or beliefs, the district court should reconsider

the . . . motion to dismiss.”). The same is true here. If further proceedings and

factual development reveal that McRaney’s claims cannot be resolved without

deciding purely ecclesiastical questions, the court is free to reconsider whether

it is appropriate to dismiss some or all of McRaney’s claims.3

NAMB broadly objects that it may have “valid religious reason[s]” for its

actions. On remand, if NAMB presents evidence of these reasons and the

district court concludes that it cannot resolve McRaney’s claims without

McRaney identifies in his complaint—statements by NAMB that McRaney refused to meet with Ezell—is not ecclesiastical in nature.

3 NAMB previously moved for dismissal based on the ministerial exception, see Hosanna-Tabor, 565 U.S. at 188; see also Our Lady of Guad. Sch. v. Morrissey-Berru, --- S. Ct. ---, 2020 WL 3808420 (July 8, 2020), but the district court denied that motion, finding that the ministerial exception only applies to disputes between employees and employers, not employees and third parties. Both parties agree that the correctness of the district court’s decision regarding the applicability of the ministerial exception is not before us.



No. 19-60293

7

addressing these reasons, then there may be cause to dismiss. See id. Were

such a broad statement alone sufficient to warrant dismissal at this stage,

however, religious entities could effectively immunize themselves from judicial

review of claims brought against them.

“The First Amendment protects the right of religious institutions ‘to

decide for themselves, free from state interference, matters of church

government as well as those of faith and doctrine.’” Our Lady of Guad. Sch. v.

Morrissey-Berru, --- S. Ct. ---, 2020 WL 3808420, at *3 (July 8, 2020) (quoting

Kedroff, 334 U.S. at 116). At this time, it is not certain that resolution of

McRaney’s claims will require the court to interfere with matters of church

government, matters of faith, or matters of doctrine. The district court’s

dismissal was premature. Accordingly, we REVERSE and REMAND.



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